As we’ve discussed in previous posts, if you want to initiate a size protest, you generally must do so within 5 business days after the contracting officer notifies you of the prospective awardee’s identity.
But what happens if, after learning that you did not receive the award, the agency does something that suggests its award decision wasn’t final–e.g., reopens discussions with offerors and seeks revised proposals? Would your size protest still be late if didn’t file within the 5-day time frame?
Take a guess. And keep reading to find out the answer!
OHA confronted this situation in Global Dynamics, LLC, SBA No. SIZ-5979 (Dec. 17, 2018). The dizzying procedural backdrop starts in September 2012, when the Army issued an RFP for registered nurse services and assigned a NAICS code carrying a $7 million size standard. Global and GiaMed submitted offers.
Later that year, the Army excluded Global from the competitive range, and in early January 2013, notified Global that GiaMed was apparent successful offeror. This award sparked a 5-year legal battle between the two parties.
Global kicked things off by filing a protest with GAO challenging its exclusion from the competitive range. In mid-2013, GAO sustained the protest and, in response, the Army established a new competitive range that included both Global and GiaMed and obtained revised proposals from each.
In early 2015, based on the revised proposals, the Army informed GiaMed that Global was apparent successful offeror. GiaMed then filed a size protest against Global and, after the protest was denied, filed an appeal with OHA. OHA denied the size appeal.
Attacking simultaneously on another front, GiaMed filed a protest with GAO. Based on that protest, the Army took corrective action; after which, the Army reaffirmed the award decision to Global in June 2016. Not willing to go down easily, GiaMed filed another GAO protest, which GAO partially sustained.
Tired of litigation, the Army threw up its hands and announced that it would cancel the RFP and award a sole source extension to the incumbent contractor. Global then filed a bid protest at the Court of Federal Claims challenging this intended course. In response, the Army rescinded the cancellation, amended the RFP, reopened discussions and requested revised proposals. On August 23, 2018, the Army notified Global that GiaMed was the apparent successful offeror.
Also not willing to back down without an extended fight, Global filed a size protest within 5 business days. In response, GiaMed argued that Global’s protest was five years too late. That’s right, GiaMed argued that Global should have filed a size protest way back in 2013 when it was first notified that GiaMed was the apparent successful offeror. The SBA Area Office agreed, and dismissed the protest.
On appeal, OHA saw things differently. OHA looked only to the most recent award to GiaMed and found that, since Global had filed its size protest within 5 business days of that award, it was timely. It rejected the idea that Global should have filed in 2013, after the initial notification of award to GiaMed, because the Army had taken actions inconsistent with the award notification. Relying on analogous precedent, OHA held:
[W]hile it is true that [the Army] originally selected GiaMed for award in January 2013, [the Army] thereafter took numerous actions inconsistent with this decision, including reopening discussions, obtaining revised proposals, and twice awarding the contract to a different company. . . .[Thus,] the original award notification was invalidated by the procuring agency’s subsequent actions, and there was no requirement to have filed a size protest within five days of the original award notification.
In line with its analysis, OHA granted Global’s appeal and remanded the case back to the Area Office for a substantive size determination.
While this decision shows that OHA won’t ignore practical realities in enforcing the timeliness rules, don’t be lulled into the false belief that time rules for size protests are flexible. They aren’t! Generally, the five-day rule is very strictly enforced. Here, though, OHA applied the timeliness rule in a reasonable and fair manner given the very unusual circumstances of the case.